B.Bhattacharya, J. - (1.)By this writ application, the writ petitioners, whose names were sponsored by the District Employment Exchange, Siliguri for the posts or Primary Teacher, have prayed for direction upon the respondents to cancel the orders of appointment of private respondent Nos. 13 to 39 with a direction upon the respondents to appoint the petitioners in the aided Government sponsored free primary school under the urban area of Siliguri Municipality on the allegation that according to the existing rule the private respondents whose names were not sponsored by the Employment Exchange could not be considered for appointment.
3. Following facts are not in dispute: The petitioners earlier filed another writ application being C.O. No. 714(W) of 1997 challenging the legality of the preparation of panel for the posts of Assistant Teacher in various aided primary schools in the District of Darjeeling prepared by the respondents authority. The said writ application came up for final hearing before Umesh Chandra Banerjee, J. (as His Lordship then was) on August 13, 1987 but on that date His Lordship dismissed the said writ application in view of the fact that Minister-in-Charge of Education (Primary and Secondary) had already been approached in he matter and the concerned Minister had also passed an order suspending payment of further salary of the newly appointed Assistant Teachers until further order. However, while dismissing the said writ application, Banerjee, J. granted liberty to the petitioners to move afresh if further cause of action arose.

4. After the dismissal of the earlier writ application filed by the petitioners, the respondent authorities in violation of the order of District Inspector of Schools (PE), Darjeeling dated July 17, 1987 released the salary of all the Assistant Teachers who were appointed under the panel of 1986 for the posts of Assistant Teachers of Primary School in Siliguri urban area. The petitioners, therefore, filed the present writ application with a prayer to cancel the appointments of the Assistant Teachers in primary schools in the District of Darjeeling who have been given appointment in violation of the relevant rules for preparation of the panel in urban area. At the time of entertaining this writ application Mohitosh Majumdar, J. by an order dated July 20, 1998 passed an interim order to the effect that appointments given to the respondent Nos. 13 to 39 should be treated as purely on ad-hoc basis and would abide by the result of the present writ application. It was further ordered that in the event their appointments are found to be illegal, they would be liable to refund the salary drawn pursuant to such appointment.

5. In the mean time, some of the private respondents whose salaries were withheld by the concerned respondent filed a separate writ application being C.R. No. 8858(W) of 1987 before this Court challenging such action on the part of the respondent. Ultimately the said writ application was finally disposed of by Ajit Kumar Sengupta, J. on November 17, 1992. His Lordship while allowing such writ application held that there was nothing wrong in the recruitment of the private respondents as primary teacher and consequently, the order passed by the Director of School Education was set aside and the respondents were directed to treat those persons at par with other teachers recruited through Employment Exchange. His Lordship further held that the private respondents who were petitioners therein would be entitled to arrears of salary and direction was given for payment of such arrears. It appears from page 18 of the said judgment that before Sengupta, J. no material was placed indicating that there was definite instruction of the State Government not to recruit any teacher except through Employment Exchange and not through any other sources. His Lordship further held that such being the position, the validity of any such restriction through executive feat did not call for consideration. It may further be mentioned here that the present writ petitioners were not made parties to the said writ application before Justice Sengupta and the present writ application where the petitioners of the writ application before Sengupta, J. are made private respondents was still pending.

6. Mr. Bhattacharya, the learned counsel appearing on behalf of the petitioners had relied upon four Circulars issued by the Education Department, Government of West Bengal and has contended that in view of those circulars there was no scope of considering the case of any person other than those sponsored through Employment Exchange. Those circulars are reproduced below: "Government of West Bengal Education Department: Primary Branch No. 421-Edn (P) Dated Calcutta, the 27th March, 1978 5B-2/77 From : Shri M.M. Sinha Roy, Deputy Secretary to the Government of West Bengal To : The Director of Primary Education, West Bengal. Sub : Setting up of new Primary Schools and Appointment of teachers. The undersigned is directed to refer to G.O. No. 153-Edn. (P) dated 31.3.78 in which sanction was granted to the setting up of 1000 new Primary Schools and appointment of 4000 teachers during 1977-78. The Governor is now pleased to order that the following instructions should be followed in the matter of setting up of new Primary Schools and appointment of teachers:- (a)(i) Organised Primary Schools set up at private initiative should no longer be granted recognition as already intimated in G.O. No. 503-Edn. (P) dated 20.4.77. Quota of Primary Schools remaining unutilised, out of the quotas sanctioned earlier, may now be utilised by setting up new schools only and the previous Government orders permitting grant of recognition to organised schools should be deemed to have been amended accordingly. (ii) The list of villages for setting up of new schools will be sent to the District Schools Boards by the Deputy Director of Public Instruction (PE). The Board will select the sites/villages from out of the list sent by the Deputy Director of Public Instruction (PE) and send their recommendation to the Director of Primary Education, for approval. (b) The Board will also select the sites/villages, from out of the list furnished by the Deputy Director of Public Instruction (PE), for setting up new Primary Schools in Scheduled Caste & Schedule Tribe villages. The list of such villages so selected may be sent to the District Welfare Committee for Scheduled Caste and Scheduled Tribe for approval. But final decision regarding selection of sites will rest with the Board. (c) If the Board finds any difficulty in the matter of selection of villages from out of the list furnished by the Deputy Director of Public Instruction (PE), the matter may be referred to the Director of Primary Education. If it is found that a recognised Primary Schools is already being run in the village included in the list of the Deputy Director of Public Instruction (PE), the case of the village may not be given any further consideration and the case of some other deserving village in the list may be considered. The District School Board may also consider the case of any school which is already pending with the Education Directorate for approval. (d)(i) Initially the Head Teacher may be appointed from out of the panel of Head Teachers (prepared Circle-wise), to organise a new school which the Board decides to set up. In case, no panel of Head Teachers is readily available, an existing Head Teacher or a Teacher-in-Charge or a Senior Assistant Teacher may be transferred to organise a new primary school which is to be set up by the Board. (ii) All teachers should be appointed from panels, which may be prepared by the District School Boards only from names of candidates received from Employment Exchanges of the District. This will be applicable to normal vacancies as well. Candidates who passed School Final or equivalent examination upto 1970 and Higher Secondary Examination upto 1971, may, however, apply direct to the Board quoting their Employment Exchange Registration numbers. Other candidates shall not be allowed to apply direct. Candidates passing School Final or Higher Secondary Examination in earlier years may be given preference at the time of preparation of panels. (e) In all new posts sanctioned for new schools, trained and untrained candidates are to be appointed on a ratio of 60:40 basis as stipulated in G.O. No. 153-Edn (P) dated 31.1.78. Para 6 of G.O. No. 503-Edn (P) dated 20.4.77 should be deemed to have been amended to this extent. The present rule that (i) all posts for additional teachers in existing school are to be filled up by trained candidates only and (ii) normal vacancies by trained and untrained candidates on 50:50 basis, should however continue for the present. (f) The District School Boards, should immediately publish an advertisement for public information (in the manner as laid down in this Department No. 21260-Edn (P) dated 18.12.75) (copy enclosed) for preparation of a panel for appointment of teachers in the District School Boards. A model form of advertisement is enclosed herewith. Applications already received by the District School Boards, for new appointments should not be considered. Fees, if any, already realised from the applicants praying for appointments under the Board should be refunded. (g) For giving appointment towards of Teachers dying in harness after 1.4.76, the names need not be included in the panel. Necessary Statutory Rules in this regard are being framed. The names of such candidates should be approved by the Directorate of Primary Education before appointment letters are issued by the District School Board. In case of extreme hardship only appointments may be given provisionally subject to approval of the Director of Primary Education. (h) The District School Boards may fill up existing vacancies, if any, in the offices of the District School Boards in accordance with the rules for the purpose. M.M. Sinha Roy Deputy Secretary" "Government of West Bengal Education Department : Primary Branch No. 1457-Edn. (P) Dated Calcutta, the 21st August, 1978 5C-3/78 From : Shri M.M. Sinha Roy, Deputy Secretary to the Government of West Bengal. To : The Director of Primary Education West Bengal. Sub : Setting up of Advisory Committee for selection of Primary Schools' sites. Ref : His Memo No. 4322-Sc/P dated 19.7.78 ---------- In continuation of Government Order No. 1234-Edn (P) dated 23rd June, 1978 (substituted), the undersigned is also directed by the order of the Governor to State that the Urban Advisory committees in Municipal areas may also be empowered to prepare panels for appointment of school teachers in aided and Government sponsored primary/junior basic schools in municipal areas, after obtaining names from the Employment Exchanges of the Districts. The guidelines issued in Government Order No. 421-Edn (P) dated 27th March, 1978 in respect of rural areas in the matter of preparation of panels and setting up of schools will apply mutatis mutandis in all the municipal areas. Since the Urban Advisory Committees will be merely advisory in character, recognition of schools will be finally given by the District Inspectors of Schools (PL) with the approval of the Director of Public Instruction. Government Order No. 1614-Edn (P) dated 8th November, 1974 which has not been given effect to, should now take immediate effect. M.M. Sinha Roy, Deputy Secretary." "Government of West Bengal Education Department: Primary Branch No. 197-Edn (P) Dated Calcutta, the 7th February 1979 5B-277 From : Shri M.M. Shinha Roy, Deputy Secretary to the Government of West Bengal To : The Director of Primary Education, West Bengal. Sub : Policy of Government on the appointment of primary teachers in the State. The undersigned is directed to say that in para 2(d)(ii) of Government Order No. 421-Edn (P) dated 27.3.78. It was decided that all primary school teachers should be appointed from panels which may be prepared by the District School Boards only from names of candidates received from Employment Exchanges of the District. Candidates who passed the School Final Examination (or its equivalent examination) in the year 1970 or earlier or those candidates who passed the Higher Secondary Examination in the year 1971 or earlier were however permitted to apply direct to the District School Boards quoting their Employment Exchange Registration Numbers.

(2.)The question of preparation of panels of qualified candidates for appointment to the post of primary school teachers by obtaining names from Employment Exchange has been re-examined by this Department with the approval of the Cabinet. After careful consideration of the whole issue the Governor is pleased to order, in partial modification of para 2(d)(II) of Government Order No. 421-Edn (P) dated 27.3.78, the 70% of the total number of vacancies in the posts of primary school teachers should be filled up through Employment Exchanges and that the candidates who have been allowed to apply direct in terms of Government Order No. 421-Edn (P) dated 27.3.78 for inclusion in the panel should be accommodated within the above-mentioned 70% of the vacancies earmarked for recruitment through Employment Exchange.
(3.)The Governor is further pleased to order that 30 per cent of the remaining vacancies to the posts of primary school teachers should be kept reserved for exempted categories of the following types regarding which the appointing authority is competent to give appointment without any reference to the Employment Exchange:-
(a) Candidates hailing from families who might have been uprooted from their places of residence as a result of the land in question being acquired by Government for major development projects like setting of a power plant or a township etc. as in Haldia. Only one member from an uprooted family shall be eligible for such preference for jobs in and around the area acquired, (b) a son/daughter/wife for a primary school teacher dying in harness after 1.4.76 subject to fulfilment of prescribed minimum qualifications, (c) ex-Industrial Census personnel who were retrenched with effect from 1st February, 1975 by the Cottage and Small Scale Industries Department, ex-Census employees who have not been absorbed in any service and ex-employees of R.R. & R. Department (ex-Subir Karmacharies who served in connection with the relief and rehabilitation of the Refugees from Pakistan and Bangladesh) who have put in at least six months' continuous service in their previous jobs, (d) sons, daughters or dependants of a family any one of which have lost his life as a result of participation in or association with any political democratic movement during the period from 1970 onwards, i.e. after the fall of the Second United Front Government, (e) Ex-servicemen who may apply. In each of the above cases the candidates must possess the requisite minimum qualification. A separate panel should be prepared from the names obtained from candidates belonging to exempted categories. But the names of candidates belongings to teachers' wards (included within exempted categories dying in harness need not be included in the panel as already ordered in para 2(b)(g) of G.O. No. 421-Edn (P) dated 27.3.78.

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